Claim Number: FA0906001269912
Complainant is
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <baylordentalcollege.com> and <baylordental.com>, registered with Above, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On July 2, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 22, 2009 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@baylordentalcollege.com and postmaster@baylordental.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <baylordentalcollege.com> and <baylordental.com> domain names are confusingly similar to Complainant’s BAYLOR mark.
2. Respondent does not have any rights or legitimate interests in the <baylordentalcollege.com> and <baylordental.com> domain names.
3. Respondent registered and used the <baylordentalcollege.com> and <baylordental.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Respondent registered the <baylordentalcollege.com> and <baylordental.com>
domain names on
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
As Complainant has furnished the Panel with pertinent
evidence of its valid USPTO trademark registration for its BAYLOR mark, the
Panel determines that Complainant has rights in the BAYLOR mark sufficient to
satisfy the requirements of Policy 4(a)(i).
It is not necessary for Complainant to have registered its BAYLOR mark
in the country of Respondent’s residence for the purposes of Policy ¶ 4(a)(i). See
Bloomberg L.P. v. Johnston, FA 760084 (Nat. Arb. Forum Oct. 25, 2006)
(finding that the complainant had established rights in the BLOOMBERG mark
through registration with the United States Patent and Trademark Office); see also KCTS Television Inc. v.
Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does
not matter for the purpose of paragraph 4(a)(i) of the Policy whether the
complainant’s mark is registered in a country other than that of the
respondent’s place of business).
Respondent’s <baylordentalcollege.com> and <baylordental.com> domain names incorporate Complainant’s BAYLOR mark in its entirety with the addition of the descriptive phrase “dental college” or “dental,” both of which are descriptive of Complainant’s Baylor School of Dentistry, and the affixation of the generic top-level domain “.com.” The Panel finds that these alterations are not capable of overcoming a finding of confusing similarity between Complainant’s BAYLOR mark and Respondent’s <baylordentalcollege.com> and <baylordental.com> domain names under Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <baylordentalcollege.com> and <baylordental.com> domain names are confusingly similar to Complainant’s BAYLOR mark pursuant to Policy ¶ 4(a)(i). See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with generic terms that have an obvious relationship to the complainant’s business); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
Complainant has satisfied Policy ¶ 4(a)(i).
Complainant must make a prima
facie showing that Respondent lacks rights and legitimate interests in the disputed domain names. The Panel finds that Complainant has
sufficiently made its prima facie
showing under Policy ¶ 4(a)(ii). The
burden then shifts to Respondent and Respondent must establish that it has
rights or legitimate interests in the disputed domain names. See Compagnie Generale des Matieres Nucleaires
v. Greenpeace Int’l, D2001-0376 (WIPO
Nevertheless, the Panel will examine the record to determine whether Respondent has any rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c).
The disputed domain names each resolve to a website displaying sponsored links that further resolve to the websites of third-party advertisers, unrelated to Complainant. Complainant contends that Respondent’s use of confusingly similar domain names to redirect Internet users to various third-party advertisements does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii), respectively. The Panel presumes that Respondent is profiting through the generation of click-through fees and finds that Respondent has failed to use the disputed domain names in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy); see also Fox News Network, LLC v. Reid, D2002-1085 (WIPO Feb. 18, 2003) (finding that the respondent’s use of the disputed domain name to generate revenue via advertisement fees is not a bona fide offering of good or services).
Furthermore, Complainant contends that Respondent is not commonly known by the <baylordentalcollege.com> and <baylordental.com> domain names. According to the pertinent WHOIS information, the registrant of the disputed domain names is “Host Master c/o Transure Enterprise Ltd a/k/a Host Master c/o DomainPark.” This information suggests that Respondent is not commonly known by the disputed domain names. There is no evidence in the record to suggest otherwise and thus, the Panel finds that Respondent is not commonly known by either the <baylordentalcollege.com> or <baylordental.com> domain names under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is using the disputed
domain names, which are confusingly similar to Complainant’s BAYLOR mark, to
display sponsored advertisement links that further resolve to unrelated
third-party websites. The Panel infers
that Respondent receives click-through fees for diverting Internet users to
these third-party links. Internet users that
access Respondent’s domain names may become confused as to Complainant’s
affiliation with the disputed domain name and the resulting websites. Therefore, Respondent’s use of the <baylordentalcollege.com>
and <baylordental.com>
domain names constitutes bad faith
registration and use pursuant to Policy ¶ 4(b)(iv). See
The Ass’n of Junior Leagues Int’l Inc. v. This Domain Name My Be For
Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <baylordentalcollege.com> and <baylordental.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: August 11, 2009
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